ABBAS AHMAD CHOUDHARY versus STATE OF ASSAM

Citation: [2010] 1 S.C.R. 869 · Decided: 25-11-2009 · Supreme Court of India · Bench: H.S. BEDI, J.M. PANCHAL · Disposal: Disposed off

Judgment (excerpt)

(2010] 1 S.C.R. 869 
ABBAS AHMAD CHOUDHARY 
v. 
STATE OF ASSAM 
(Criminal Appeal No. 951 of 2004) 
NOVEMBER 25, 2009 
[HARJIT SINGH BEDI AND J.M. PANCHAL, JJ.] 
Penal Code, 1860: 
A 
B 
ss. 376134 and 336134 - Evidence of prosecutrix - Out c 
of three accused fw(J convicted and sentenced as the third 
remained absconding - Appeal of convicts dismissed by High 
Court - HELD: In a matter of rape, though statement of 
prosecutrix must be given primary consideration, but at the 
same time the broad principle that the prosecution has to 
D 
prove its case beyond reasonable doubt applies equally to a 
case of rape and there can be no presumption that a 
prosecutrix would always tell the entire story truthfully -
Prosecutrix in her earlier statement has not attributed the 
offences of rape and kidnapping to one of the appellants -
Therefore, in the light of contradictions, some doubt is created 
E 
with regard to his involvement - He is accordingly acquitted 
-
As regards the other appellant, statements of the 
prosecutrix and other witnesses are categoric - Prosecutrix 
clearly stated that she had been kidnapped and raped by this 
accused and the absconding accused - His appeal is, 
F 
therefore, dismissed - Evidence. 
· CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal 
No.951 of 2004. 
From the Judgment & Order dated 26.3.2004 of the High 
G 
Court of Gauhati in Criminal Appeal No. 199 of 2003. 
WITH 
__ c 
..... r"'"'""I. A. No. 477 of 2005. 
,•Judgment Recd. on 10.2.2010 
869 
H 
870 
SUPREME COURT REPORTS 
[2010] 1 S.C.R. 
A 
Shakeel Ahmed, Surya Kant and Ng. Jr. Luwang (for 
B 
Corporate Law Group) for the appearing parties. 
The following Order of the Court was delivered 
ORDER 
1 . These two appeals by way of special leave arise out of 
the judgment of the High Court of Gauhati dated 26th March, 
2004 whereby the two appellants have been convicted and 
sentenced to various terms of imprisonment and fine for 
C offences punishable under Sections 376/34 and 336/34 of the 
Indian Penal Code. 
2. The facts of the case are as under:-
2.1. At about 8:00p.m., on the 15th September, 1997, the 
D accused-appellants Md. Mizazul Haq and Abbas Ahmad 
Choudhury and one Ranju Das (absconder) took up the 
prosecutrix and drove her in a Maruti vehicle to the Jalalpur Tea 
Estate after gagging her mouth. She was also raped by the 
three of them whereas the absconder also removed a sum of 
Rs. 40/- from her. An FIR was lodged at 10:30a.m. on 16th 
E September, 1997, by P.W. 7 Safaruddin, the maternal uncle 
of the victim and a case was duly registered. On the completion 
of the investigation the appellants were charged fro the 
aforementioned offences and as they denied the charges, they 
were brought to trial. The trial court relying on the evidence of 
F P.W. 6 prosecutrix as also the medical evidence of P.W. 8 and 
the statements of P.W. 5 - Constable Ranjit Dutta who had 
apprehended the appellants and the prosecutrix on the evening 
of 15th September, 1997 and taken them to the police station 
as also the Investigating Officer Dhiresh Chadnra Nath - P.W. 
G 9 convicted the appellants as already indicated above. The 
argument raised on behalf of the appellants that the prosecutrix 
was about 16 years of age was repelled on the basis of the 
statement of P.W. 8 - Dr. Homeshwar Sharma who deposed 
that she was between 13 and 15 years of age on the date of 
H her medical examination i.e. 17th September, 1997. The 
ABBAS AHMAD CHOUDHARY v. STATE OF ASSAM 871 
additional fact urged on behalf of the appellants that the medical 
A 
examination had not revealed any trace of recent sexual inter 
course to corroborate the allegation of rape was also repelled 
by observing that the said medical examination had been 
carried out after 48 hours or so of the rape and the signs 
thereof would have disappeared by the passage of time. The 
B 
matter was thereafter taken in appeal before the High Court by 
the two appellants. The appeal too was dismissed as indicated 
above. It is in this situation that the matter is before us. 
3. We have heard Mr. Shakeel Ahmed for the appellant -
Abbas Ahmad Choudhary and Mr. Surya Kant, the learned 
C 
Amicus Curiae for the co-accused Md. Mizazul Haq. We are 
of the opinion that the statements of the prosecutrix - P.W. 6, 
the constable - P.W. 5 and the Investigating Officer - P.W. 9 
are categoric insofar as the presence of Md. Mizazul Haq is 
concerned. Even in her statement recorded under Section 164 D 

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